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Court of Criminal Appeal 21 December 2021

Lee v R

[2021] NSWCCA 318

Drugs
CRIME SENTENCE APPEAL ASSESSMENT OF RESPECTIVE ROLES OF CO OFFENDER PARITY NO JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Lee v R [2021] NSWCCA 318
Court: NSW Court of Criminal Appeal
Date: 21 December 2021
Judges: Bathurst CJ, Rothman J, Dhanji J

Background

The appellant was convicted of two Commonwealth drug offences involving commercial quantities of methamphetamine, committed in Sydney between August and September 2015. The first offence involved trafficking in approximately 19 kilograms of methamphetamine; the second involved attempting to possess approximately 42 kilograms of methamphetamine that had been unlawfully imported and was the subject of a controlled delivery by law enforcement.

The offences were committed in conjunction with a co-accused. The appellant's role centred on practical arrangements: liaising with a third party to facilitate delivery of the drugs, moving the consignment between locations, booking a storage unit in his own name, hiring vehicles in his own name, and operating bank accounts in his own name for funds connected to the offending. The co-accused was the resident of the Chippendale apartment where drugs were found, and the appellant was a periodic visitor there.

The sentencing judge imposed an aggregate sentence on the appellant of 13 years and 3 months, with a non-parole period of 7 years and 1 month. The co-accused, who had pleaded guilty at an early stage and received a 25 per cent discount, received an aggregate sentence of 14 years. The appellant sought leave to appeal on two grounds relating to the assessment of his role and the disparity between his sentence and that of his co-accused.

  • Whether the sentencing judge failed to account for the fact that the appellant was exposed to greater risk of investigative attention than the co-accused, in assessing the appellant's role in the offences.
  • Whether the difference between the appellant's sentence and the co-accused's sentence gave rise to a justifiable sense of grievance on the part of the appellant, engaging the parity principle.

Decision

On the first ground, the Court of Criminal Appeal found it difficult to identify what the ground added beyond the parity argument already raised in the second ground. Bathurst CJ observed that exposure to the risk of investigative attention is not generally an aggravating or mitigating factor going to the objective seriousness of an offence, nor is it ordinarily relevant to moral culpability. In the absence of a ground alleging that the sentence was manifestly excessive, this consideration could only bear on the relative roles of the two offenders, which the sentencing judge had already taken into account when imposing different aggregate sentences.

On the parity ground, the Court examined the sentences imposed on both the appellant and the co-accused, having regard to the differences in their respective roles and the subjective features relevant to each. While the appellant performed more visible, practical tasks that exposed him to investigative risk, both men were arrested at the storage unit. The co-accused had been assessed at a higher starting point for each count before the discount for the early guilty plea was applied, reflecting the sentencing judge's view that the co-accused bore the greater culpability overall.

The Court found the differential between the sentences was rational and reflected the differences in role and subjective circumstances. Rothman J concluded there was no justifiable sense of grievance, and Bathurst CJ and Dhanji J agreed. The appeal was therefore dismissed, though leave to appeal was formally granted to enable the merits to be considered.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the parity principle is not engaged merely because co-offenders receive different sentences; the relevant question is whether the difference is rationally explicable by reference to differences in role, culpability, and subjective circumstances.
  • A co-offender's greater exposure to investigative attention is not, without more, an aggravating or mitigating factor going to the objective seriousness of an offence, nor a factor relevant to moral culpability.
  • Where a sentencing judge has already accounted for the relative roles of co-offenders in imposing differential sentences, an appeal ground that merely reasserts the same factual distinction is unlikely to succeed independently of a parity ground.
  • The parity principle requires a "justifiable sense of grievance," a threshold that is not met where the court can identify a rational basis for the disparity, even if a slightly different differential might also have been defensible.
  • Applying a 25 per cent utilitarian discount for an early guilty plea in the Local Court can substantially affect an aggregate sentence, and courts treat that discount as part of the rational explanation for any sentencing differential between co-accused who entered pleas at different stages.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Code Act 1995 (Cth), ss 302.1(1)(b), 302.2(1), 307.5(1)

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Andrews v Law Society of British Columbia [1989] 1 SCR 143